David Daniels v. State of Arkansas
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ARKANSAS SUPREME COURT
No.
CR 08-885
Opinion Delivered
DAVID DANIELS
Appellant
v.
STATE OF ARKANSAS
Appellee
October 30, 2008
PRO SE MOTIONS FOR
APPOINTMENT OF COUNSEL AND
FOR CONTINUANCE OR
SUSPENSION OF APPELLANT’S
BRIEF’S DUE DATE [CIRCUIT
COURT OF BENTON COUNTY, CR
2005-902, HON. DAVID S. CLINGER,
JUDGE]
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
A jury found appellant David Daniels guilty of theft of property and sentenced him as a
habitual offender to 168 months’ imprisonment. The Arkansas Court of Appeals affirmed. Daniels
v. State, CACR 07-592 (Ark. App. Mar. 5, 2008). The mandate issued on March 25, 2008.
Appellant filed in the trial court a pro se petition for postconviction relief under Arkansas Rule of
Criminal Procedure 37.1 on June 9, 2008. The trial court denied the petition on the basis that it
lacked jurisdiction because appellant’s petition was not timely filed. Appellant has lodged an appeal
of that order in this court. He now brings a pro se motion for appointment of counsel on appeal, and
a motion for continuance or suspension of his brief’s due date in which he requests an extension of
time to file appellant’s brief.
We need not consider the merits of appellant’s motions because it is clear that he cannot
prevail on appeal. An appeal of the denial of postconviction relief will not be permitted to go
forward where it is clear that the appellant could not prevail. Booth v. State, 353 Ark. 119, 110
S.W.3d 759 (2003) (per curiam).
When a criminal conviction is appealed, Arkansas Rule of Criminal Procedure 37.2(c)
mandates that the petition for postconviction relief be filed within sixty days of the date the mandate
issued. In the instant case, the sixtieth day following the issuance of the mandate was May 24, 2008,
a Saturday before a holiday. Under the calculation required by Arkansas Rule of Criminal Procedure
1.4, appellant’s petition was due to be filed no later than May 27, 2008. Therefore the petition filed
on June 9, 2008, was not timely.
The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and the circuit court
may not grant relief on an untimely petition. Womack v. State, 368 Ark. 341, 245 S.W.3d 154 (2006)
(per curiam). Because it is clear that the trial court could not consider the petition, appellant cannot
prevail. We accordingly dismiss the appeal and appellant’s motions are moot.
Appeal dismissed; motions moot.
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